Business and Professions Code, Section 8555(g)

On June 8, 2009, the California Nuisance Wildlife Control Operators Association submitted a proposal to revise Section 8555(g) of the Business and Professions Code to State Senator Leland Yee a member of this committee having the jurisdiction to introduce the desired change.

Recently, the Ninth U.S. Circuit Court of Appeals found this law to be unconstitutional and instructed the U.S. District Court in San Francisco to issue a JUDGMENT AND INJUNCTION permanently enjoining the state from enforcing this code section to the extent it requires Branch 2 licensure for persons engaged in the live capture and removal or the exclusion of mice, rats or pigeons from a structure without the use of pesticides, provided those persons maintain insurance coverage as described in section 8692.

Wildlife Control Operators, who do not use pesticides for the control of mice, rats and/or  pigeons, having been unlawfully prevented from engaging in this work for the past fourteen years, now ask the legislature to respect the federal court’s decision and revise Section 8555(g) in the following way:

This chapter does not apply to:

(g.) Persons engaged in the live capture and removal or exclusion of vertebrate pests, bees, or wasps from a structure without the use of pesticides, provided those persons maintain insurance coverage as described in Section 8692. “Vertebrate pests” include, but are not limited to, pigeons, rats, mice, bats, raccoons, and squirrels. This section does not exempt a person from the provisions of Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code.”

 We further propose that the corresponding FOOD AND AGRICULTURE, Section 11531 (e) be revised accordingly.

Fish and Game Code Sections 4005

 The CNWCOA has studied and considered all subsections of Section 4005 since it is a primary occupational licensing law regulating the trapping of furbearers and non-game mammals. In conducting this analysis, we found parts of code section to be vague, ambiguous, unfair, illegal and incomplete. We have therefore submitted our proposal to revise Section 4005 to remedy these important deficiencies.

 The proposal was submitted on June 4, 2009 to Assemblyman Jared Huffman, Chair of the Assembly’s Water, Parks and Wildlife Committee. This committee introduced, and subsequently amended, Section 4005, and has the jurisdiction to initiate our proposed amendments.

(a.)  Limit the application of this section to Animal Damage Control (ADC) Trapping Licenses.

There is no legitimate reason for the state to require fur trappers or recreational trappers to pass written tests of their knowledge or to take performance tests to demonstrate their skills in trapping any more than there is to require the testing of applicants for fishing licenses or hunting licenses.

Those who trap only for fur or for recreational purposes do not perform for the benefit of California consumers. Since they have no customers their trapping license can not be considered to be an occupational license appropriate for state regulation. Persons who trap for these purposes should be issued licenses upon payment of the specified fees for their respective age and residential status.

To avoid unnecessary confusion, Section 4005 should pertain solely to those persons, who as ADC Trappers, are hired and paid by the public to resolve their animal damage control problems by trapping and removing furbearers and nongame mammals creating damage to their property or presenting a threat to their health or safety.

(b.)  Written “knowledge tests” and “skill performance tests" are both required prior to issuance of the ADC Trapping Licenses. 

An applicant’s skill, competence and proficiency in trapping furbearers and non-game mammals cannot possibly be assessed simply by means of a paper and pencil test (as is the department’s current practice).  Every applicant for an ADC Trapping License should be required to demonstrate to an DFG examiner, that he or she has the ability to set the traps commonly used for ADC purposes, that they can create a trap set, apply the lure or food bait appropriate for the target animal, properly regulate the flow of gas into an euthanasia chamber, and perform these tasks within a reasonable period of time.
ADC Trapping Licenses should only be issued by DFG to those persons who have passed both the paper and pencil test of trapping knowledge and then have passed the performance test requiring them to demonstrate that they possess the required skills in trapping.

(c.)  ADC Company License and Individual ADC Trapper’s License both required.

It should be understood that it is the “ADC Company” that provides the trapping  service on behalf of the customer for profit and that the individually licensed trapper is acting as an agent of the employing company when engaged in that activity. However, it is the skill and knowledge of the individual that is of primary importance. Therefore, two licenses should be required in all trapping situations: an ADC company’s business license and its employee’s trapping license.

(d.) Trap Tags should bear ADC company name, DFG license number and emergency telehone number

Since the ADC company owns the traps (and not the employee) all traps should be tagged with the issued ADC business license number. Otherwise, things will get confusing when one trapper sets the trap, a second trapper services the trap, and a third trapper removes the trapped animal, and a fourth trapper picks up and returns the trap to the company at the end of the trapping period. The only constant throughout is the ADC company that is contractually responsible to the customer for providing the trapping service. 

(e.)  ADC Company License must be posted in office

Just as registered pest control companies and registered contactors are required by law to post their business licenses in a prominent place in their offices, so too should ADC companies be required to post the ADC business license issue to them by the DFG.

(f.)  ADC Trappers should be issued a laminated license with photo

Unlike the currently issued paper trapping license, the DFG should issue a durable wallet-size license able to withstand the adverse conditions ADC Trappers often encounter. The license should bear the licensee’s photo and the ADC business license number issued by the department. The individual license should be issued in a case with snap/strap that the trapper can wear on his uniform shirt for the customer to readily see.

Individual trapping licenses should become immediately void when the person leaves the employ of the ADC company. Re-licensure (but not re-testing), would be required in the event the person wishes to resume ADC trapping activities in another company or as a self-employed individual.

(g.)  ADC Business License number should be included in all forms of advertising

Consumers should be able to distinguish licensed from non-licensed ADC companies when they look in the yellow pages, search online or see a company vehicle on the street.

Contractors and pest control companies are required to provide their license numbers on their business cards, brochures, newspaper ads, contacts, etc. and so should ADC companies for all the same reasons.

(h.)  Licensed ADC Companies and Trappers should be posted on official DFG website

Consumers in need of trapping services should be able to go to the DFG website at any day or time and find a searchable database containing the telephone numbers of all ADC licensed companies serving their geographical area. They should be able to determine if a person is properly licensed by search the company name, the trapper’s name or the trapper’s license number. Again, other regulating agencies including the CSLB, DPR and SPCB routinely provide this information on their official websites. No reason why DFG should not do the same.   

(i.)  Trapping License Fees 

The fees for ADC Company Business Licenses and ADC Trapping Licenses should be increased and be commensurate with the costs for increased DFG regulatory services including test construction and administration, website database construction and maintenance, license creation and issuance, enforcement of advertising requirements, etc.

(j.)  Government employees exempted   no change in sub-section (h.)

(k.)  Section 4005 (e)(2)(3) Granting exemptions should be rescinded

This existing subsection, created by the passage of AB 87 several years ago, is unconstitutional for the very same reasons that the court found Section 8555(g) of the Business and Professions Code to be unconstitutional.  The law serves no legitimate public purpose and is nothing more than another protectionist law created for the economic benefit of one group at the expense of another group similarly situated. Again, as in Merrifield v. Lockyer, courts have repeatedly recognized that protecting a discrete interest group from economic competition is not a legitimate governmental purpose, and where simple economic protectionism is effected by state legislature, a virtual per se rule of invalidity has been erected (See City of Philadelphia v. New Jersey).

The CNWCOA recommends that the Fish and Game Commission should decide which animal species it no longer wishes the DFG to regulate and to then identify these animals by common and Latin name in separate sections under the heading “Non-Regulated Mammals” and “Non-Regulated Birds”.

Instead of favoring pesticide applicators with exemptions from the trapping license requirements, the Fish and Game Code should unambiguously state that the trapping of pigeons, rats, mice, gophers, moles, voles (and what other pest or nuisance animals the Commission decides to include) is not regulated by the department and DFG licensure is therefore not required of any person engaged in the trapping of these Non-Regulated animals.

(l.)  No changes in Section 4152 and 4189 exemption.

(m.)  No raw furs can be sold